1 Fluck v. Tollemache, I C. & P. 5 (supra); Rolfe v. Abbott, 6 C. & P. 286; Deane v. Annis, 14 Me. 26; Thayer v. White, 12 Met. 343. In Law v. Wilkin, 6 Ad. & El. 718, the defendant's son was at school, and appearing to be in want of clothes, the defendant supplied him. When the boy went home, he took the clothes with him, but did not wear them. There was no evidence that the father ever saw the clothes, or knew any thing about them. The judge at nisi prius nonsuited the plaintiff on the ground that there was not sufficient evidence to charge the defendant; but the Court of King's Bench set it aside on the ground that there was some evidence; and Lord Denman said: "A father is properly liable for any necessary provision made for his infant son." But in Mortimore v. Wright, 6 M. & W. 482, Lord Abinger said: "With regard to the case of Law v. Wilkin, if the decision is to be taken as it is reported, I can only say that I am sorry for it, and cannot assent to it." See supra.
2 See Bazeley v. Forder, Law R. 3 Q. B. 558 (1868).
3 In the case of Bryan v. Jackson, 4 Conn. 288, where the defendant's circumstances import assent in the particular case is a question for the jury.
§ 134. Where the contract is not for necessaries, the father's authority and assent thereto must clearly appear; but where the child lives with his father, and the contract is for absolute necessaries, the obligation of the father being a mixed one of legal and moral duty, his authority and assent might, perhaps, be presumed. Mere moral obligation, however, in no case is sufficient to create a liability on the part of the father, even for necessaries, and unless the circumstances be such as to bear an implication of assent, he will not be responsible.1 But in case of necessaries his assent will be implied from slighter circumstances than where the contract is for articles not necessaries. Where, however, the father expressly states his dissent to the contract, he of course will not be bound thereby, and so, also, where the circumstances show that articles were supplied contrary to his wishes, he is absolved from responsibility.2 infant son had previously bought goods of the plaintiff which had been paid for by the defendant without objection, or notice not to trust his son further, and the son afterwards took up goods of a similar nature, which were sued for; it was held, that the previous payments were a recognition of the son's authority by which the father was rendered liable, - although he had ordered his son to contract no more debts, such prohibition not being made known to the plaintiff. See also McKenzie v. Stevens, 19 Ala. 691; Deane v. Annis, 14 Me. 26. In the case of Thayer v. White, 12 Met. 343, goods had been previously bought of T. by the defendant's son, a minor, with the defendant's express consent. Subsequently the son bought goods again of T. in the name of his father, on six months' credit, and wrote to his father informing him thereof, and the father made no reply, and it was held that the jury were warranted in inferring the consent of the father from his silence, and that he was therefore liable. See also Baker v. Keen, 2 Stark. 501; Van Valkinburgh v. Watson, 13 Johns. 480; Mortimore v. Wright, 6 M. & W. 482.
1 Mortimore v. Wright, 6M.&W. 482; Chilcott v. Trimble, 13 Barb. 502; Shelton v. Springett, 11 C. B. 452; 20 Eng. Law & Eq. 281, and Bennett's note. Gordon v. Potter, 17 Vt. 348; Raymond v. Loyl, 10 Barb. 483. See also cases cited above; Kelley v. Davis, 49 N. H. 187 (1870).
2 In Gordon v. Potter, 17 Vt. 350, Redfield, J., says, "But there is one defect in the case, which we think must clearly, and indisputably, preclude any recovery against the father. It does not appear that the father ever gave the son any authority, either expressly or by implication, to pledge
§ 135. Where the child does not live with the father, stricter proof would be required of his assent, than where they live together, since in the latter case the presumption of assent grows more naturally out of the case. Where the child is entirely deserted by the father, it is not settled whether the father would be liable, even for necessaries, but it seems, on broad principles, that the moral obligation of a father to his child ought to create such a liability, in cases where the child is of weak age and unable to support himself, at least so far as to prevent him from perishing by actual destitution. But the authorities do not support this doctrine, and it is said that in case the child is utterly deserted by the father, his sole resource, in the absence of any thing to show a contract express or implied on the father's part, is to apply to the parish, and then the proper steps can be taken to enforce performance of the parent's legal duty.1 his credit for the articles; but the contrary. And unless the father can be made liable for necessaries, for his infant child, against his own will, then, in this case, the plaintiff must fail to recover. I know there are some cases, and dicta of judges, or of elementary writers, which seem to justify the conclusion, that the parent may be made liable for necessaries for his child, even against his own will. But an examination of all the cases upon this subject will not justify any such conclusion."
1 Per Jervis, C. J., in Shelton v. Springett, 11 C. B. 452; 20 Eng. Law & Eq. 281. Maule, J., said, " I am of the same opinion. People are very apt to imagine that a son stands in this respect upon the same footing as a wife. But that is not so. If it be asked, is, then, the son to be left to starve, -the answer is, he must apply to the parish, and they will compel the father, if of ability, to pay for his son's support. That is the course which the law points out. But the law does not authorize a son to bind his father by his contracts. Upon the evidence in this case, it is clear there was a total absence of authority in the son to contract on the part of the father, the debt now sued for. The plaintiff originally contracted with the son, intending to trust him for payment. There is nothing in the correspondence from which we can infer an intention on the father's part to confer authority upon the son to contract a liability for him. The letter written by the defendant's attorney does not admit, or give any color of admission of, an original liability. I think there is not even what is called a scintilla of evidence. But it is quite clear that there is not such evidence as would justify a jury in finding a verdict for the plaintiff. 1 therefore agree with my lord, that the rule must be made absolute to enter a nonsuit." In the case of Urmston v. Newcomen, 4 Ad. & El. 899, the question, whether a father deserting and then was removed by her mother to another place, and an action was brought for the board in the latter place, it was held, that as the husband had paid the board at the first place, he thereby impliedly acknowledged the discretionary power of his wife to contract for such purpose, and therefore that he was liable.1